Judge erred in not allowing past behavior of the victim into evidence says ruling by Arizona Court of Appeals

A 62-year-old retired schoolteacher who shot and killed a Payson man four years ago at a trailhead north of Strawberry is getting a new trial.

The Arizona Court of Appeals granted the new trial for Tolleson resident Harold Fish in a 110-page opinion that said, in part, the original trial judge — Mark Moran of Flagstaff — erred in not allowing the victim’s past behavior to be introduced into evidence. The court also ruled that the three dogs the victim, Grant Kuenzli, had with him could have been classified as “dangerous instruments” as defense attorney Melvin McDonald asked.

Deborah Fish, Harold’s wife, said the entire family was elated and ecstatic with the court’s ruling, “luckily it was Hal’s day to call me and I was able to tell him the good news.”

The court also said Moran did not properly answer the Coconino County jury’s request to define the word “attack” when the jury asked.

The appeals court suggested jury members might not have understood that aggravated assault can be committed without actually touching a person.

Also, the Appeals Court said the jury should have received clearer definitions of self-defense and if Kuenzli exercised “unlawful physical force” before he was shot.

Fish claimed that when the two met on the trailhead, Kuenzli wildly attacked him after he fired a warning shot at two of the dogs who were also attacking him. Fish, however, admitted the two never actually touched, but said he feared for his life.

Throughout the widely publicized trial, McDonald maintained that Kuenzli’s previous behavior, which included aggressive acts and violent run-ins with a former girlfriend and several others, should be allowed into evidence. Moran turned down every motion.

Mesa police reports show that one ex-girlfriend told officers that during the two’s relationship, Kuenzli was “very possessive, controlling and threatening toward her.”

The jury also never heard that Kuenzli was extremely possessive, some say overly possessive, of the dogs, and there was evidence that at least two of the canines had earlier exhibited aggressive behavior.

Moran did not allow evidence that Kuenzli was receiving psychiatric treatment and counseling at Rim Guidance Center.

He was taking medications for depression and anxiety.

In its ruling for a new trial, the Appeals Court said there was enough evidence, had the jury heard it, to possibly support Fish’s claim of self-defense.

Fish’s wife is hopeful that a bill just passed by the Arizona Legislature could help her husband, “it went to the governor today, and we are hoping she signs it.”

If the governor signs the bill it will make the state’s revised self-defense law retroactive to Fish’s case and put the burden of proof on the prosecution.

The Fish case prompted legislators to rewrite the state’s self-defense laws in 2006. The new law, however, wasn’t retroactive to the Fish trial.

During Fish’s sentencing hearing, McDonald portrayed the mild-mannered ex-teacher — the father of six with strong church and community ties — as a model citizen and Kuenzli as an eccentric who lived a hermit-like existence in the woods.

At Fish’s sentencing, that portrayal angered Kuenzli’s sister, Linda Almeter, who jumped up and stormed out of the courtroom.

The prosecution, which included chief deputy county attorney Michael Lesser, argued that Fish overreacted and took a man’s life when other options were available.

After Fish was convicted of shooting Kuenzli, McDonald walked out of the courtroom predicting that Moran had erred and the case would someday be overturned.

About an hour before McDonald departed, the jury had found Fish guilty of second-degree murder and he was sentenced to a mitigated minimum sentence of 10 years in prison.

During sentencing, Moran told Fish “I believe you reacted out of fear” and called the case one “that gives new meaning to the word tragedy for both families.”

Fish’s current attorney, Lee Phillips, took over the case in the summer of 2008 and filed the appeal for a new trial, paid for by a defense fund established by Fish’s family and friends.

Phillips said Fish probably won’t be released from prison because the state will likely file an appeal with the Arizona Supreme Court.

Lessler has indicated no decision on an appeal would be made until he reviews the appellate court’s decision.